LexSMT. MASUMA versus STATE OF MAHARASHTRA & ANR.
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A B c D E F G 288 SMT. MASUMA v. STATE OF MAHARASHTRA & ANR. August 12, 1981 [P.N. BHAGWATI AHO V. BALAKRISHNA ERADI, JJ.J Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-DetentiDn order passed by the Secretary to Government, but the -representation made by the detenu considered by the Minister of State-Whether Such a consideration was not a valid and proper consideration and therefore the detention:ttse/fwas invalid-Constitution of India, 1950, Article 22(5) read with Rule 15 of the Rules of Business of Government of Maharashtra read with clauses 14, 5 and 6 of the Instructions issued thereunder and further standing orders dated 18th July, 1980-Clause (b) of section 8 of COFEPOSA, explained. One Hasnain Mukhtar Hussain Lakdawala was detained by the Government of Maharashtra by an order of detention dated 31st December, 1980 passed under section 3(1) of COFEPOSA, 1974. The order of detention was served on the detenu on 17th January, 1981 along with a communication dated 31st December, 1980 and a letter dated 7th January, 1981 was also served enclosing copies of the documents relied upon in the grounds of detention. A Jetter dated 6th February, 1981 along with nine copies of the representation to be made by the detenue sent by the detenu's advocate to the Superintendent, Bombay Central Prison, though handed over to the detenu by the prison authorities on the same day was carried by the detenu to the Nasik Road Central Prison to which he was shifted on that day. The requisite copies of the representation duly signed by the detenu were forwarded to the Government and the Chairman of the Advisory Board on 10th February, 1981. The State Government, however, rejected the representation by its letter dated 25th February, 1981. A copy of the representa- tion sent to the Central Government was also rejected on 26th February 1981. In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, when the detenu was called for an oral hearing, the detenu handed over four copies of a further representation dated 11th March 1981, praying for revocation of the detention order. The Advisory Board consi- dered the case and by its report dated 12th March 198! advised the State Government that there was sufficient cause for the detention of the detenu, and through its letter dated 16th March, 1981 apprised the detenu's advocate of the position. The State Government thereafter confirmed the order of detention. Hence the writ petition by the detenu's wife. Dismissing the petition, the Court, HELD: 1:1. There was ho constitutional or legal infirmity in the repre- sentation of the detenu having been considered by the Minister of State for Home. (294 BJ 1 :2. The only requirement of Article 22(5) of the Constitution is that the representation of detenu must be considered by the detaining authority which in ) . - j . ' , ' ~ \ - _ .. ' MASUMA v. MAHARASHTRA 289 the present case was the State Government and this requirement was clearly satisfied, because when the Minister of State for Home considered the repreiienta· tion and rejeeted it, he was acting for the State Government and the considera- tion and rejection of the representation was by the State Government. [293 G] 1:3. There is no requirement express or implied in any provision of COFEPOSA that the same person who acts for the State Government in making the order of detention mu<it also consider the representation of detenu. More- over, it would really be to the advantage of the detenu, if his representation is not considered by the same individual but fresh mind is brought to bear upon it. [293 H-294 BJ In view of the clear provisions of Rule 15 of the Rules of Business of the Government o( Maharashtra, clauses 4 to 6 of the Instructions issued by the Governor thereunder and the two standing orders dated 18th July 1980 it was immaterial, whether P.V. Nayak condidered the representation and disposed it of, or the Minister of State for Home did so, since both had authority to act for the State Government and whatever be the instrumentality, it would be the State Government which would be considering and dealing with the representa~ tion. [292 D-H; 293 F] Smt. Kavita v. State of Maharashtra, [1982] 1 S.C.R. 138, followed. 2. The State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Adv
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